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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 2885-2887 of 2005
S. Kesari Hanuman Goud … Appellant
Versus
Anjum Jehan & Ors. … Respondents
With
CIVIL APPEAL NOs. 2888 & 4459 of 2005
J U D G M E N T
Dr.B.S.Chauhan, J.
Civil Appeal Nos. 2885-2887 of 2005
1. These appeals have been preferred against the judgment and
order dated 10.6.2003 by the High Court of Judicature, Andhra
Pradesh at Hyderabad in C.C.C.A. Nos.34 and 33 of 1991 and
C.C.C.A.No. 92 of 1993, by way of which the appeals filed by the
respondents against the common judgment and decree dated
22.3.1991, in O.S. No.30 of 1984 and O.S. No.135 of 1984, passed byPage 2
the court of the Additional Chief Judge, City Civil Court, Hyderabad,
have been partly allowed, by modifying the said judgment and order
of the trial court.
2. Facts and circumstances giving rise to these appeals are that:
A. The appellant/plaintiff was carrying on business prior to
1.1.1978 in the appurtenant land as a tenant, and had made an offer to
purchase the said premises, alongwith two other premises belonging
to the landlady Ms. Anjum Jehan - respondent No.1/defendant No.1
(hereinafter referred to as `Res.No.1’).
B. The parties entered into an agreement dated 15.10.1977, for the
sale of land admeasuring 1200 square yards situated at Musheerabad,
Hyderabad, Andhra Pradesh, for a total consideration of Rs.1,70,070/-.
Out of which a sum of Rs.25,000/- was paid as earnest money. The
said agreement to sell, provided that the sale deed was to be executed
within a period of six months from the date of agreement, or upon
intimation by the vendor, as she had to obtain permission from the
competent authority under Section 27 of the Urban Land Ceiling Act,
1976 (hereinafter referred to as `the Act 1976), the necessary income
tax clearances and the sub division permission from the municipal
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corporation. The aforesaid suit land was also in the possession of the
landlady, and had partly been occupied by defendant no. 2/respondent
(Narsoji).
C. After the execution of the said agreement to sell, the
appellant/plaintiff paid non-agricultural assessment tax.
A legal
notice dated 18.6.1979 was received by the appellant from Res. No.1
Ms. Anjum Jehan, stating that she had obtained requisite permission
from the statutory authorities under the Act 1976, from the income tax
authorities, and also from the sub-divisional authorities.
D. The appellant/plaintiff asked Res. No.1 vide letter dated
2.7.1979, to send the copies of the aforesaid permissions, as well as a
copy of the General Power of Attorney (hereinafter referred to as the
`GPA’), that had been executed by her.
E. Instead of executing the sale-deed in favour of the
appellant/plaintiff, Res. No.1 tried to sell the suit property to other
persons. Therefore, the appellant/plaintiff got a public notice
published in local newspapers on 29.4.1980 and 30.4.1980, in respect
of the suit property, stating that an agreement to sell had been
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executed between the parties as regards the said land, and that
therefore, no other person must purchase the same.
F. Despite the said notice, the GPA holder of Res. No.1 entered
into two different agreements to sell with respondent no. 2/defendant
no.3 (K.S.R.Murthy) on 29/30.4.1980, for open land admeasuring 510
square yards.
G. The appellant/plaintiff filed a suit bearing O.S. No. 30 of 1984
on 23.6.1983 for specific performance of the agreement to sell dated
15.10.1977, directing the Res. No.1 to execute a registered sale deed
in favour of the appellant/plaintiff, and ignoring the agreement to sell
in favour of respondent/defendant nos.3, 6 and 7.
H. Respondent no.3/Defendant No. 7 (K.Y. Rajaiah) filed Original
Suit No. 135 of 1984 on 27.12.1983, for perpetual injunction,
restraining the appellant/plaintiff from interfering with the
construction of a theatre building, including the compound wall of the
same, which was in close proximity to his land.
I. During the pendency of these two suits, Res.No.1 executed a
sale deed, and she got the same registered on 29.4.1985, in favour of
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respondent no.2/defendant no.3 with respect to the part of the suit
property admeasuring 260 square yards, and the recital of the sale
deed acknowledged the agreement between the appellant/plaintiff and
Res. No.1.
J. The GPA holder registered another sale deed in favour of
respondent no.2/defendant no. 3 on 30.4.1985, with respect to the suit
property admeasuring 260 square yards.
K. The trial court, vide judgment and decree dated 22.3.1991
decreed the suit of the appellant/plaintiff except for a small area
admeasuring 65 square yards, which had been purchased by defendant
no.6 (represented by Lrs. defendant nos.6 to 10), observing that the
said defendant had no knowledge of any agreement to sell between
the appellant/plaintiff and Res. No.1. The trial court also dismissed
Suit No.135 of 1984 that had been filed by respondent no.3/defendant
No.7 (K.Y. Rajaiah).
L. The appellant/plaintiff was directed to deposit the balance
consideration amount in the trial court within a period of four weeks,
and the same was duly deposited by the appellant/plaintiff on
6.4.1991.
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M. Both sides preferred appeals before the High Court, and all the
appeals were disposed of by a common judgment dated 10.6.2003, as
referred to hereinabove.
N. The High Court held, that the appellant/plaintiff was not ready
and willing to perform his part of the contract, thus, in view of the
same, there was no occasion to decide issues regarding whether the
subsequent purchasers were in fact, bonafide purchasers for
consideration without notice of the agreement to sell between the
appellant/plaintiff and Res. No.1. However, the court further held,
that the appellant/plaintiff would be entitled to get the sale deed
executed in respect of the said land, excluding the land sold to
defendant nos.3, 6 and 7 at the rate of Rs.750/- per square yard,
adjusting the amount that had already been paid.
O. Res.No.1 filed a Review Petition before the High Court.
During the pendency of the said review petition, both the sides have
preferred these appeals. The Review Petition filed by Res. No.1 stood
dismissed vide order dated 20.2.2004. The said order is also under
challenge before us in connected appeal Nos. 2888 and 4459 of 2005.
Hence, these appeals.
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3. Shri Anoop G. Chaudhari, learned senior counsel appearing on
behalf of the appellant/plaintiff, has submitted that the High Court,
while dealing with the first appeal, has decided the same under
Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred
to as `the CPC’), giving strict adherence to Order XLI Rule 31 CPC,
and thus that it ought to have dealt with each and every issue, and
appreciate all the evidence on record. It was under an obligation to
record findings on each issue separately. The High Court has
committed an error in appreciating the evidence on record, and
coming to the conclusion that the appellant/plaintiff was not ready and
willing to perform his part of the contract, as the appellant/plaintiff
had in fact been issuing public notices, with the intention of making
other people aware of the fact that they must not indulge in any kind
of transaction in respect of the suit property, as the same belonged to
him. He also had the financial capacity to pay, which stood proved by
the fact that within a period of three weeks from the date of judgment
and decree of the High Court, he deposited the entire amount.
Furthermore, the High Court ought to have appreciated the evidence
on record, with respect to whether the other defendants/subsequent
bonafide purchasers had purchased the land without notice. Merely
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saying that the same was not necessary, would mean that the court
itself has violated the mandate of Order XLI Rule 31 CPC. Res.No.1
(Ms. Anjum Jehan) never appeared in the witness box and never filed
a written statement. The same was filed by her GPA holder. The said
GPA was in respect of various other properties, and the GPA holder
was not authorised to pursue suits in respect of the suit property.
Under no circumstance is the GPA holder competent to enter the
witness box and to give evidence as a substitute for the original party.
Thus, the appeals deserve to be allowed, and the judgment and decree
of the High Court, is liable to be set aside.
4. Per contra Shri A.T.M. Rangaramanujam, Senior Advocate,
Shri R. Anand Padmanabhan, Shri Sohan Singh Rana and Shri A.V.
Rangam, learned counsel appearing on behalf of the respondents, have
opposed the appeals contending that the High Court has appreciated
the evidence on record and has reached the correct conclusion. The
findings of the fact recorded by the High Court are based on
evidence, and do not warrant any interference by this Court. The
appellant/plaintiff, has not furnished any explanation for the delay, as
he was duly informed by Res. No.1 of the fact that she had obtained
the required sanctions/permissions. Had the appellant/plantiff been in
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a position to perform his part of the contract, he could not have waited
for a period of more than 4 years to file the suit. During the pendency
of the cases, a part of the suit land stood acquired for widening the
road. The appellant without having any title over the land, has
claimed and withdrawn a huge amount of compensation
unauthorisedly/fraudulently. Thus, the appeals are liable to be
dismissed.
5. We have considered the rival submissions made by the parties,
and perused the record.
6. The trial court, after appreciating the evidence on record came
to the following conclusions:
I) The evidence adduced on behalf of the defendants does not
conclusively establish their plea to the effect that the plaintiff
himself had cancelled the agreement to sell (Ex.A-1), in view of
his inability to pay the balance of the sale consideration.
II) The plaintiff had the capacity to raise and pay the balance of the
sale consideration under Ex.A-1. Thus, the plaintiff was ready
and willing to perform his part of the contract.
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III) There were inconsistent versions with regard to the extent of
the land alleged to have been sold to defendant nos.3 and 7.
IV) The plaintiff had paid the amount towards non-agricultural
assessment tax and property tax for the suit property.
V) The plaintiff had not rescinded the suit contract, and had not
informed the first defendant that he was not in a position to
complete the sale transaction, and that therefore, defendant no.1
was at liberty to sell the suit land to any other person, as has
been contended by defendant no.1
VI) Defendant nos.3 and 6 were subsequent purchasers for
consideration without notice. Defendant no.6 is a bonafide
purchaser for value, without notice of the agreement to sell
(Ex.A-1).
7. The High Court while deciding the first appeal filed under
Section 96 CPC, did not consider all the issues as is required under
Order XLI Rule 31 CPC. On the other hand, it dealt with only one
issue elaborately, without making any reference to the pleadings taken
by the parties. The High Court held:
(i) No steps were taken by the appellant/plaintiff in establishing his
readiness and willingness to perform his part of the contract.
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(ii) Only a nominal sum was paid by the appellant/plaintiff in 1977
and till the date that the suit was filed, no effort was made by the
appellant/plaintiff to pay the balance amount.
(iii) There has been inordinate delay on the part of the
appellant/plaintiff in filing the suit. Had he been ready and willing, he
ought to have approached the court at the earliest.
(iv) As per the evidence of defendant no. 7, the power of attorney
holder (DW.1), did not call the appellant/plaintiff and ask him to get
the sale deed executed, in pursuance of agreement dated 15.10.1977.
The appellant/plaintiff expressed his inability to get the sale deed
executed as he had no ready cash.
(v) There was no requirement in law to obtain permission for
separate sub-division and thus, Res.No.1 was not required to obtain
any such sanction. Furthermore, the said property had already been
sub-divided, and bore different numbers.
(vi) Res. No.1 had obtained the requisite permission from the Urban
Land Ceiling Authorities in December 1977, and the
appellant/plaintiff had handed over the draft sale deed to Res. No.1.
(vii) It was because the appellant/plaintiff was not willing and ready
to perform his part of the contract, and was resorting to dilatory
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tactics, that Res. No.1 had entered into two agreements to sell with
respondent nos.3 and 7.
(viii) In view of the above, there was no occasion to examine the
other issues, particularly those with respect to whether the other
respondents were bonafide purchasers for consideration without
notice, and the appeals were hence disposed of, as has been referred to
hereinabove.
8. The plaint contained a specific averment in paragraph 7 as
under:
“The plaintiff is and had always been ready
and willing to perform his part of the suit
agreement and it is the first defendant, who
evaded to perform her part of the suit
agreement and finally committed to refusal
of the terms of the suit agreement amounting
to refusal on her part to so perform her part
of the suit agreement.”
9. In the written statement, Res. No. 1 simply denied the said
averment, and further averred that:
“The allegation in para 7 of the plaint that
the plaintiff was always ready and willing to
perform his part of the suit agreement being
incorrect is denied. The allegation that the
defendant committed breach of the
agreement and failed to perform her part of
the agreement being incorrect is denied. The
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Defendant submits on the contrary that the
plaintiff failed to perform his part of the
agreement thereby committed a breach of
the agreement The Defendant, submits that
the Defendant performed her part of the
agreement and was ready to perform her part
of the agreement, It is submitted that finally
when the plaintiff failed to raise necessary
money towards the sale price plaintiff
informed the Defendant that she/is at liberty
to sell the property to anyone.”
10. A replication was filed by the appellant/plaintiff under Order
VIII Rule 9 CPC, wherein it has been submitted in paragraph 6
thereof as under:
“The plaintiff is a big businessman having a
business turnover of more than 5 lakhs per
year. He is always capable of providing and
raising the necessary finances to complete
the sale transaction”
11. These are the only pleadings taken by the parties so far as the
issue of readiness and willingness to perform part of the contract by
the appellant/plaintiff is concerned. The appellant/plaintiff examined
himself as PW.1, and in his cross-examination he has denied any
suggestion made to him to the effect that he had ever informed the
power of attorney holder of Res. No.1, namely, Shri S.S. Noor Ali,
that he would be unable to raise the balance of the sale consideration.
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Nor he had ever told defendant no. 7 that he wanted to sell the
agricultural land to raise money to purchase the suit property. No
question was put to him in the cross-examination, in response to
which he could establish that he was a man of means, which he has
thus stated in the replication, though he has admitted that he has
certain outstanding dues towards the bank. He has denied the
suggestion that he had neither a house, nor agricultural land, and that
he had no capacity to pay the sale consideration, and further, that he
had falsely deposed in respect of the same.
12. The allegation made in the written statement stating that the
appellant/plaintiff had told Res. No. 1 that she was free to sell the
land, was not established by leading any evidence. Additionally, Res.
No. 1 lives in the USA. It is nobody’s case that the appellant/plaintiff
had any communication with her. It was not mentioned in the
averments raised in the written statement, that she had been informed
anyone of the same through the power of attorney holder. Further,
with respect to the issue regarding financial capacity to pay, the
appellant/plaintiff examined K. Narayana Reddy (PW.2) and Laxman
Gore (PW.3). They fully supported his case, deposing that he was a
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man of means, and that he had sufficient properties and the means to
purchase the said suit property.
Thus, the finding recorded by the High Court on this issue is
perverse being contrary to the evidence on record.
13. It is a settled legal proposition that the power of attorney holder
cannot depose in place of the principal. Provisions of Order III, Rules
1 and 2 CPC empower the holder of the power of attorney to “act” on
behalf of the principal. The word “acts” employed therein is confined
only to “acts” done by the power-of-attorney holder, in exercise of the
power granted to him by virtue of the instrument. The term “acts”,
would not include deposing in place and instead of the principal. In
other words, if the power-of-attorney holder has preferred any “acts”
in pursuance of the power of attorney, he may depose for the principal
in respect of such acts, but he cannot depose for the principal for acts
done by the principal, and not by him. Similarly, he cannot depose for
the principal in respect of a matter, as regards which, only the
principal can have personal knowledge and in respect of which, the
principal is entitled to be cross-examined. (See: Vidhyadhar v.
Manikrao & Anr., AIR 1999 SC 1441; Janki Vashdeo Bhojwani v.
Indusind Bank Ltd., (2005) 2 SCC 217; M/S Shankar Finance and
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Investment v. State of A.P & Ors., AIR 2009 SC 422; and Man
Kaur v. Hartar Singh Sangha, (2010) 10 SCC 512).
14. So far as the notice of the agreement between the appellant and
Res. No. 1 is concerned, the trial court after taking note of the recital
of the said agreement in the agreement to sell and sale deed also, has
held, that, so far as the land sold to respondents other than respondent
no.6, the parties had been fully aware of the same.
Only respondent
no.6 had no such notice. Shri A. G. Chaudhari, learned senior counsel
appearing on behalf of the appellant, has submitted that the same
being a very small area, the appellant is not willing to disturb the
possession of defendant no.6.
15. In the facts and circumstances of the case, as the appellant has
not yet acquired any title over the land, he has no right to receive
compensation to the tune of Rs. 29,47,112/-. However, he withdrew
the said amount by giving an undertaking to return the said amount to
Res. No. 1 in case any such order was passed by the court in this
regard.
16. In view of the above, the appeals are allowed. The judgment
and decree passed by the High Court is set aside, and the same passed
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by the trial court is restored. As a consequence, the appellant is
entitled to get the sale deed executed and registered, with respect to
all the suit land available now (minus the land acquired and the land
purchased by the respondent no.6).
17. The appellant is directed to refund the amount of compensation
received by him to Res. No. 1 within a period of three months,
alongwith 9% interest from the date of receipt till the date of payment.
Civil Appeal Nos. 2888 and 4459 of 2005
In view of the judgment and order in Civil Appeal Nos. 2885-
2887 of 2005, these appeals are dismissed.
….……………………………...................................J.
(Dr. B.S. CHAUHAN)
…..………………………….. ...................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
April 10, 2013
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